Citation Nr: 18148003 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-38 286 DATE: November 6, 2018 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a respiratory disability, claimed as due to asbestos exposure, is denied. FINDINGS OF FACT 1. A lumbar spine disability manifested more than one year after active service and was not caused or aggravated by any aspect of service. 2. The Veteran does not have a respiratory disability during the period of the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for a respiratory disability, claimed as due to asbestos exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to August 1981 and From October 1981 to February 1985 in the United States Navy. He served as a boatswain’s mate aboard an aircraft carrier during his first period of active duty and as a boatswain’s mate aboard a command ship and as corrections specialist at a brig during the second period of active duty. This current appeal comes to the Board of Veterans’ Appeals (Board) from a January 18, 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Originally, the Veteran filed a fully developed claim, on May 23, 2013, for bilateral hearing loss, a lower back condition, and a respiratory condition due to asbestos exposure. In his substantive appeal on August 1, 2016 the Veteran only appealed the issues of a lumbar spine disability and respiratory disability. He also declined to have an optional Board hearing. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. A VA examination was not provided for his lumbar spine or respiratory disabilities, and they are not necessary with regard to these issues because the evidence does not establish an in-service injury or disease, or that a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation. Moreover, the evidence does not raise an indication that the current disability may be caused by service. Therefore, VA’s duty to provide a VA examination or opinion is not triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006) (discussing when a VA examination or opinion is necessary). Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). 1. Lumbar Spine Service treatment records (STRs) show that the Veteran was seen once in service, on November 7, 1984, for tightness in his middle back. A sketch showed a trigger point between the shoulder blades. He was told to consult a physical therapist and to take Motrin. The STRs also show that in a January 14, 1985 discharge physical examination, the Veteran denied recurrent back pain, and a military examiner noted no spinal abnormalities or significant history associated with the back. Service personnel records do not show any training for or performance of parachute jumping. Moreover, the Veteran’s military occupations are not of the nature to require this training, skill, or experience. Treatment records from after service show the Veteran first reported back pain to a private chiropractor on February 27, 1990. He told the chiropractor that he woke up with back pain two days earlier and that his father had a history of back pain from “jumping out of planes.” Records from the chiropractor show intermittent treatment for back pain for many years. On January 4, 1993 the Veteran reported that he had low back pain after lifting weights and playing basketball three days prior. On August 11, 1993 he hurt his lower back after playing baseball. A lumbar sprain was reported on April 19, 1999 after the Veteran lifted a 50lbs. block of salt while at home. Another sports related injury occurred on August 24, 2001 when the Veteran fell on the soccer field and landed on his back. An MRI was performed on March 4, 2002. It revealed that the Veteran had a herniated disc. His lumbosacral spine alignment was normal, and his overall spinal canal diameter was within normal limits. Also found was some desiccation of the L5-S1 disc, with associated chronic reactive changes in the end plates. The examiners impression was that of “findings most consistent with a large left-sided lateral/far lateral disc extrusion at L4-5. There are some degenerative changes present as described above.” On April 4, 2007 he reported lower left back pain which the examiner diagnosed as subluxation of his L4, facet syndrome, and sciatica. At an appointment on October 25, 2012 the Veteran’s spine was observed to be normal, there was no scoliosis, his straight leg test was negative, with no paraspinal tenderness. Analysis Despite a single complaint for upper back pain in service and current findings of lower spinal degenerative disc disease, the Board does not find that it is at least as likely as not the Veteran’s lumbar spine disability onset during or is caused by any aspect of service. First, the Veteran denied any back pain just 2 months after making a complaint for tightness in his back and denied recurrent back pain during his discharge examination. Second, the Veteran separated from active duty in February 1985 and degenerative changes were noticed by imaging studies for the first time 17 years after service. That is well outside the one-year presumptive period in which arthritic changes must manifest to a compensable degree. 38 C.F.R. §§ 3.307(a)(3), 3.309. Additionally, the Veteran stated, at the February 1990 examination, that his backpain onset just 2 days prior to that examination. It must also be noted that the Veteran injured his back several times after leaving service while playing sports and lifting heavy objects. His herniated disc in 2002 was also not medically related to service, and given the Veteran’s history the herniated disc was possibly to those injuries rather than a service related injury from 17 years prior. When the Veteran reported back pain after service he normally related it to an injury obtained after service—like basketball or weight lifting. He had ample opportunities to explain that his back pain was related to his in-service report of tightness. While the Board must take into consideration the lay evidence submitted by the Veteran (Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)) it must also take into account self-reported inconsistencies when stacked against contemporaneous medical evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994). The contemporaneous medical evidence shows back pain onset by several injuries after service. Furthermore, the Veteran waited approximately 28 years to file for service connection, a fact that may be weighed against the Veteran. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a negative inference may be drawn from the absence of complaints or treatment for an extended period). The Veteran’s degenerative arthritis did not manifest within a year of separation. His current lumbar spine disease and herniated disc has not been objectively found to have onset during or caused by military service, and the Veteran has had several intervening back injuries post-service. Given the evidence of record, the Board does not find that service connection for a lumbar spine disability is warranted. 2. Respiratory Disability The Veteran contended that he has a respiratory disability caused by exposure to asbestos and lead paint in service. The Veteran’s Naval occupations as a boatswain’s mate and corrections specialist (brig guard) are consistent with use of paint but not exposure to friable asbestos as might occur during handling or disassembly on insulated systems by maintenance personnel. The Board concludes that the Veteran does not have a current respiratory disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran has not presented any evidence of asbestos exposure during service other than calling attention to treatment in March 1981 for excision of bilateral pterygia that had been causing eye irritation, but the records of care for this episode do not mention asbestos exposure and there was no follow up during the remainder of his service. The Board finds that the Veteran’s general reports of exposure to asbestos are not credible as they are inconsistent with his occupations and not supported by other evidence. Moreover, the Veteran does not have a respiratory disability. Records of medical care by a private physician from 2008 to 2012 are silent for any respiratory symptoms or treatment. On October 25, 2012, the private physician did not find any issues with the Veteran’s lungs. Without a current disability there can be no service connection. Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Therefore, entitlement to service connection for a respiratory issue is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel